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2015 DIGILAW 1186 (JHR)

Rita Sahu v. State of Jharkhand

2015-09-29

RAVI NATH VERMA

body2015
ORDER : 1. Invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner has prayed for quashing of the orders dated 19.2.2015, 24.3.2015 and 8.5.2015 passed by learned Judicial Magistrate, 1st Class, Jamshedpur in G.R. Case No. 3883 of 2014 arising out of Mango (Ulidih) P.S. Case No. 618 of 2014 whereby and whereunder the warrant of arrest and the Processes under Sections 82 and 83 of the Code of Criminal Procedure (in short the Code) respectively have been issued and has also prayed to quash the first information report as well as the entire criminal proceeding of the above case. 2. The prosecution case, which is necessary for the proper adjudication of the issue involved in this writ application, in short, is that at the instance of the informant Khusboo Kumari, a written report was lodged stating that her marriage with Amit Kumar was solemnized on 4.12.2011 as per Hindu rituals and rites and as per the custom, her father had made expenses of rupees fifteen lakhs as per the demand of her in-laws but after few days of the marriage, there was a complete change in the behaviour of the in-laws and other persons and they started taunting upon her. After almost one month of the marriage, she went to Noida along with her husband where he was posted. Her husband after taking drink used to misbehave with her for which she made complaint to her in-laws but they instead of restraining her husband instigated him on phone whereafter she was tortured mentally and physically and even she was threatened of dire consequence. She informed her parents about the torture and cruelty but being annoyed of that, her husband left his service and came back to his house at Deepatoli, Ranchi. This time, they started demanding money for doing business. During Chhath Pooja, she came to her parents house along with her husband where she mentioned about the demand and when her parents refused to fulfill such demand, her husband abused them also. On 11.11.2014, her husband went to Singapore and after his return, as the demand of money was not fulfilled, she was again threatened. Hence, the F.I.R. 3. During Chhath Pooja, she came to her parents house along with her husband where she mentioned about the demand and when her parents refused to fulfill such demand, her husband abused them also. On 11.11.2014, her husband went to Singapore and after his return, as the demand of money was not fulfilled, she was again threatened. Hence, the F.I.R. 3. It appears from the order-sheet of the court below enclosed with this writ application that on the basis of the written report of the informant, F.I.R. was lodged and sent to the Court on 16.12.2014 and on the very next date i.e. 19.2.2015 fixed in the case, on a requisition filed by the Investigating Officer, warrant of arrest against the petitioners were issued. On the very next date 24.3.2015, on mere requisition of the Investigating Officer, the proclamation under Section 82 of the Code was directed to be issued, which was issued by the office of court below on 4.4.2015. On 8.5.2014, a prayer was made by the Investigating Officer in writing to the court to issue process under Section 83 of the Code for attachment of property of the petitioners and the same was issued on 11.5.2015. Apparently, summons were never issued for appearance of the petitioners. 4. Mr. P.P.N. Roy, learned senior counsel appearing for the petitioners submitted that though prayer was made in the writ application for quashing of the entire criminal proceeding as well as the F.I.R. of the case but his submission is now confined to the issuance of the non-bailable warrant and Processes under Section 82 an 83 of the Code only. Learned senior counsel seriously contended that the court below without following the mandates of the Hon'ble Supreme Court given in several cases, passed the above orders in a mechanical manner without applying his judicial mind and that on mere perusal of the order sheet of this writ application, it would appear that the above orders are non-speaking and without following the mandates of issuance of summons and recording its satisfaction before issuing processes. Hence, the above orders are liable to be quashed in the light of the mandates given by the Hon'ble Supreme Court in the cases Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and Another, (2011) 4 JLJR 385 (SC) and Inder Mohan Goswami and Another vs. State of Uttranchal and Others, 2008 (1) JLJR 82 (SC). 5. Hence, the above orders are liable to be quashed in the light of the mandates given by the Hon'ble Supreme Court in the cases Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and Another, (2011) 4 JLJR 385 (SC) and Inder Mohan Goswami and Another vs. State of Uttranchal and Others, 2008 (1) JLJR 82 (SC). 5. Contrary to the aforesaid submissions, learned counsel representing the State contended that on applications filed by the Investigating Officer for issuance of warrant of arrest as the petitioners were evading their arrest, warrant of arrest and subsequently the proclamation under Section 82 and attachment of the property of the petitioners under Section 83 of the Code were ordered to be issued. As such, there is no illegality in the order impugned. 6. After hearing both the counsels and after going through the record of the case and especially the certified copy of the order sheets enclosed with the writ application, I find that the court concerned without following the mandates of the Hon'ble Supreme Court issued non-bailable warrant of arrest against the petitioners on requisition filed by the Investigating Officer and on a mere requisition filed by the Investigating Officer, the court below without applying judicial mind issued the proclamation under Section 82 and attachment of property of the petitioners under Section 83 of the Code. 7. In the case of Inder Mohan Goswami and Another vs. State of Uttranchal and Others, 2008 (1) JLJR 82 (SC), the Hon'ble Supreme Court while dealing with the same situation observed in paragraphs 50 to 55 as follows:- “50. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. 51. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the large interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued. When non-bailable warrants should be issued. 52. Non-bailable warrant should be issued to bring a person to court when summons or bailalbe warrants would be unlikely to have the desired result. When non-bailable warrants should be issued. 52. Non-bailable warrant should be issued to bring a person to court when summons or bailalbe warrants would be unlikely to have the desired result. This could be when:- (i) It is reasonable to believe that the person will not voluntarily appear in court. (ii) The police authorities are unable to find the person to serve him with a summon. (iii) It is considered that the person could harm someone if not placed into custody immediately. 53. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive. 54. In complaint cases, at the first instance, the court should direct serving of the summons alongwith the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable-warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuance non-bailable warrants. 55. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight-jacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided.” 8. In the light of the guidelines given in the aforesaid case, for better appreciation, a reference of Section 73 of the Code, which deals with the issuance of warrant, is necessary, which reads as follows:- Section 73 – Warrant may be directed to any person:- (1) The Chief Judicial magistrate or a Magistrate of the First Class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence, and is evading arrest. (2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. (3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under Section 71.” 9. From bare perusal of the above Section, it appears that it confers a duty upon the Magistrate to issue warrant of arrest on three categories of persons namely (i) escaped convict, (ii) proclaimed offender and (iii) a person, who is accused of non-bailable offence and is evading arrest. The Hon'ble Supreme Court in the case of Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and Another (supra) considered the issue of execution of non-bailable in paragraph 9 and held as follows:- “9. It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. The Courts have to be extra-cautious and careful while directing issue of non-bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other. Therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other. Indeed, it is a complex exercise. As Justice Cardozo puts it on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter alia, to the nature and seriousness of the offence involved, the past conduct of the accused; his age and the possibility of his absconding.” 10. Apparently, the court below has not considered and followed the mandates given in the above two judgments and without applying his judicial mind in a mechanical manner passed the orders without showing any reason or recording any satisfaction regarding issuance of non-bailable warrant, the proclamation under Sections 82 of the Code and attachment of property of the petitioners under Section 83 of the Code. Hence, I am constrained to hold that the orders issuing non-bailable warrant, the proclamation under Sections 82 and attachment of property under Section 83 of the Code respectively are liable to be set aside. 11. In the result, this Writ Petition (Cr.) is, hereby, allowed. The orders passed by the court of Judicial Magistrate, 1st Class, Jamshedpur dated 19.2.2015 issuing non-bailable warrant and orders dated 24.3.2015 and 8.5.2015 by which order of proclamation and attachment of property respectively were issued, are, hereby, quashed. The court below is directed to proceed in accordance with law.